Madras High Court
Deluxe Roadlines vs National Insurance Co. Ltd. And Anr. on 11 September, 1986
Equivalent citations: (1987)2MLJ174
ORDER M.N. Chandurkar, C.J.
1. The petitioner, original defendant in a suit for damages is a common carrier. It is a partnership firm whose Head Office is in Bangalore.
2. Plaintiff No. 2 - The Kil Kotagiri Tea and Coffee Estate Co. Ltd., handed over certain goods to the defendant for being delivered at Hubli in the State of Karnataka. As the goods were never delivered, because, according to the defendant, a major portion of the goods which consisted of consignment of tea had been washed away due to heavy rains at the time when the lorry which was carrying the goods had met with an accident. Plaintiff No. 2 along with plaintiff No. 1, which is National Insurance Co. Ltd., filed a suit for damages amounting to Rs. 755 in the Court of the District Judge, Uthagamandalam. In the written statement one of the pleas raised by the defendant was that the Court at Uthagamandalam had no jurisdiction to entertain the suit, because, the parties have agreed to submit to the Bangalore jurisdiction as stated in the goods consignment note. Therefore, according to the defendant, the suit should be filed only in the appropriate Court at Bangalore.
3. The only material on which the validity of the objection to the jurisdiction of the Court at Uthagamandalam was to be decided consisted of two consignment notes Exs. A13 and A14, produced by the plaintiff No. 2 the counter foils of which were Exs. A7 and A8. The learned Judge after framing the necessary issues, took up for consideration issue No. 7 which reads as follows:
Whether this Court has jurisdiction to try the suit?
4. Ex. A7 was a consignment note issued by the defendant to the second plaintiff on 25.6.1980 and Ex. A8 was a second consignment note dated 26.6.1980. These consignment notes as well as the original of these consignment notes had the words 'subject to Bangalore jurisdiction' printed on them. The learned Judge, after referring to the decision of the Bombay High Court in Road Transport Corporation v. Kirloskar Bros. Ltd. A.I.R. 1981 Bow. 299, took the view that merely because the words 'subject to Bangalore jurisdiction' were printed, it could not be held that there was a contract restricting the choice of forum in which a suit for damages could be filed. The learned Judge has found that there was no evidence to show that either the consignor or the consignee had signed in Exs. A13 and A14. In both these exhibits the column for the consignor's signature was left blank. The learned Judge took the view that if there was no evidence that the conditions were brought to the notice of the consignor, it would be open to the plaintiffs to file a suit in any competent Court having jurisdiction. Thus, according to him, the Court at Uthagamandalam had jurisdiction to entertain the suit. However, the learned Judge has also observed relying on a decision of this Court in Prakash Road Lines Pvt. Ltd., v. Muthusami Gounder and Co. , that in view of the decision cited supra the Bangalore Court would not have any jurisdiction, as no part of the cause of action had arisen at Bangalore and that the Court at Uthagamandalam alone had jurisdiction. Having found on the issue of jurisdiction against the defendant, the suit was directed to be taken up for trial on all the other issues. The defendant has now challenged this order of the learned Judge in this revision petition.
5. Mr. K.T. Palpandian, learned Counsel appearing on behalf of the petitioner-defendant has contended that the learned Judge was not right in holding that the suit could not be filed in the Court at Bangalore and further, according to the learned Counsel the consignment notes having been marked by consent and having been produced by the plaintiff No. 2 itself it must be assumed that the term relating to the restriction of the forum to the Court at Bangalore was brought to the notice of plaintiff No. 2. Therefore, according to the learned Counsel the plaintiff should have filed the suit in the Court at Bangalore and hot at the Court at Uthagamandalam. Now it is undoubtedly well settled that where there is more than one forum in which a suit could be filed, it is open to the parties to a contract to provide that a suit in respect of the particular contract should be filed only in a particular forum. But it is also well established that where the right to file a suit in a particular forum is alone canvassed, then it is necessary that such a term in the contract must be specifically brought to the notice o of plaintiff No. 2. Therefore, according to the learned Counsel the plaintiff should have filed their suit in the Court at Bangalore and not at the Court at Uthagamandalam. Now it is undoubtedly well-settled that where there is more than one forum in which a suit could be filed, it is open to the parties to a contract to provide that a suit in respect of the particular contract should be filed only in a particular forum. But it is also well established that where the right to file a suit in a particular forum is alone canvassed, then it is necessary that such a term in the contract must be specifically brought to the notice of the other contracting party. In other words, it must be established by tangible evidence that the contracting parties had entered into a contract restricting the forum for a suit with full knowledge of such a term in the contract. If it is not established that the plaintiff was specifically informed about the term relating to the restriction of the forum when the contract was entered into, then the defendant cannot validly raise an objection that a suit filed in a forum other than the one which is mentioned in the contract, is filed in a Court without jurisdiction.
6. This question has been exhaustively considered in the decision of the Bombay High Court in Road Transport Corporation case A.I.R. 1981 Bow. 299, relied upon by the learned Judge. The Division Bench of the Bombay High Court in paragraph 46 of its judgment has observed as follows:
In order that the terms or conditions on the overleaf of a consignment note passed by a common carrier be binding on the consignor or consignee and in order that it should operate as a special contract between the consignor or consignee on the one hand and the carrier on the other hand, the consignment note must be signed by the consignor and consignee and constitute a contractual document or at least must be identified as an integral part of the contractual document. In cases of unsigned consignment notes containing clauses limiting the liability of the carriers as well as excluding the jurisdiction of certain Courts and restricting it to a specific Court only, such clauses or terms or conditions must be brought to the notice of the consignor of the goods. If such terms and conditions are not brought to the notice specifically and adequately then the consignor or consignee would not be bound by those terms and it would be open for them to file a suit in any competent Court having jurisdiction other than one mentioned in the clauses excluding jurisdiction of other Courts. When more than one Court have concurrent jurisdiction to try a suit in order to exclude jurisdiction of one Court such condition required explicit warning.
7. The Bombay High Court has referred to the decision of this Court in Patel Bros. v. Vadilal Kashidas Ltd. . In that case the plaintiff firm carrying on business at Madras entered into a contract at Bombay for the purchase of one bale of cotton cloth with the defendants, who were a limited company. According to the plaintiffs the delivery was to be made at Madras. When the suit was filed in the Court at Madras, the defendants contested the claim and one of the objections was that the Court at Madras had no jurisdiction because in the bill issued to the defendants at the top the words mentioned were 'subject to Bombay jurisdiction'. Except this bill no other evidence was given. It was held that though a part of the cause of action arose at Bombay where the contract was entered into, a part of the cause of action also arose at Madras where the goods were to be delivered and that therefore the Madras Court had jurisdiction to entertain the suit. However, with reference to the objections that the suit should have been filed in Bombay, the learned Judge Ramachandra Iyer, J. as he then was, following the decision in Hoosan Kasam Dada (India) Ltd., v. Motilal Padampat Sugar Mills Co. Ltd. (1954) 1 M.L.J. 434 : 67 L.W. 36 : A.I.R. 1954 Mad. 845t I.L.R. (1954) Mad. 855 and a decision of Balakrishna Iyer, J. in Hemachandra Saub v. Sirdanmal Kesarimal and Co. C.R.P. 1010 of 1953, has observed as follows:
I respectfully agree with that view. I am also of the opinion that the mere printing of the words 'subject to Bombay jurisdiction' in Ex. P1 cannot amount to a contract that both the parties agreed to have the Bombay Court as the venue for the settlement of disputes.
In the case of Hoosan Kasam Dada (India) Ltd. , referred to above, this Court had taken the view that ouster of jurisdiction of a Court to which a person is entitled to resort under the Civil Procedure Code or any other statute cannot be a matter of assumption or presumption but one to be proved by express words contained in the contract or at least by necessary or inevitable implication. In Hemachandra Sahu's case C.R.P. No. 1010 of 1953, it was held that the jurisdiction of the Madras Court could not be taken away merely because in the letterhead of the defendant he had printed the words 'subject to Berhampur jurisdiction'.
8. Now so far as the present case is concerned it is difficult to see how merely because plaintiff No. 2 produced Exs. A7 and A8 the consignment notes it could be presumed that the clause relating to the restriction of the firm to the Bangalore Court was brought to the notice of plaintiff No. 2. The consignment note is not signed by plaintiff No. 2 or its representative. There is no other independent evidence to establish that when the goods were handed over for being transported this condition was brought to the notice of anybody on behalf of the plaintiffs. The defendant's contention that Bangalore Court alone would have jurisdiction cannot, therefore, be accepted.
9. The learned Counsel appearing on behalf of the defendant had some grievance about the finding given by the learned Judge that even the Bangalore Court would not have jurisdiction. It is true that in view of the finding recorded earlier that the decision of the Uthagamandalam Court is not excluded, strictly, the question as to whether the Bangalore Court has jurisdiction or not would not be relevant. However, it is necessary to point out that the finding recorded by the learned Judge that the Bangalore Court would have no jurisdiction to entertain the suit if the present plaintiffs wanted to file a suit there is wholly unjustified. The defendant is a firm and haying regard to the fact that its head office was in Bangalore the jurisdiction of the Bangalore Court would clearly be attracted in view of the express provision in Section 20, Clause (a) of the Civil Procedure Code. The Explanation in Section 20 which is a deeming provision is merely enacted to explain the words carriers on business which occur in Clauses (a) and (b) In relation to a Corporation and the Explanation is not intended to take away the jurisdiction which is vested in the Court by Clauses (a), (b) or (c) of Section 20.
10. The finding recorded by the learned Judge that the Bangalore Court would have no jurisdiction is given by him having regard to the decision in Prakash Roadlines P. Ltd. v. P. Muthuswami Gounder and Co. . That was a case in which the plaintiff-respondent firm delivered certain goods to the defendant Prakash Roadlines P. Ltd. which was a company having its head office at Bangalore, for being transported to Calcutta. The defendant had also a branch office at Karur. The consignor's copy of the lorry receipt contained a clause that disputes arising between the parties were subject to Bangalore Court's jurisdiction only. When a suit instituted by the plaintiff at Karur for damages on the ground that the consignment of cloth entrusted at Karur for being carried to Calcutta and to be delivered to the consignee there, had not been so delivered and some of the goods which were sent had sustained damage due to rain and flood waters, an argument was advanced on behalf of the defendant that the suit should have been filed at Bangalore. In the above mentioned decision it was held that the Court at Bangalore did not have any jurisdiction at all with reference to Section 20, C.P.C. This view was taken having regard to the two parts of the Explanation to Section 20, C.P.C. Referring to the effect of that case, the learned Judge observed as follows:
The Explanation is important as it elucidates what is enacted in Section 20(a), C.P.C., and it has to be so read and construed as to clear up any ambiguity in the main section and cannot be applied independently of the provision which it is intended to explain. Bearing in mind the purpose and scope of the Explanation and analysing it, it is at once clear that it consists of two distinct parts with reference to the place, where the defendant carries on business. By the first part, a corporation like the petitioner, shall be deemed to carry on business at its sole or principal office. Under the second, it shall be deemed to carry on business in respect of any cause of action arising at any place, where it has also a subordinate office, at such place. That the two parts of the Explanation are also intended to be disjunctive is made out by the use of the word 'or'. Reading Section 20(a), C.P.C., in the light of the Explaination, it is seen that a corporation shall be deemed to carry on business at its sole or principal office in India or with reference to a cause of action arising at a place, where it has a subordinate office, it shall be deemed to carry on business at such place.
The learned Judge then went on to observe that by reason of the application of the latter part of the Explanation, the defendant is deemed to carry on business at Karur, the place where the subordinate Office of the defendant is located and where the cause of action had arisen by the entrustment of the goods by the plaintiff to the defendant for carriage and that when the case is considered from the point of view of the effect of Section 20(a), C.P.C., read with the latter part of the Explanation or Section 20(a), C.P.C., it was obvious that only the Sub Court at Karur had jurisdiction to entertain the suit and not any other.
11. The learned Counsel appearing on behalf of the defendant contended that the learned Judge was not right in reading the Explanation in the manner in which he did so as to say that in the case of a Corporation, the suit had to be filed against the Corporation only at the place where it had its subordinate office if a cause of action arose at that place and that in such a case the suit could not be filed at a place where it had its principal office in India. Now for the purpose of the present case, it is not necessary to decide this contention. But it must be mentioned that the learned trial Judge was in error in recording a finding that the suit could not be filed against the defendant at Bangalore because in so far as the present defendant is concerned, the Explanation was not attracted at all. The Explanation was attracted only in case of Corporation. The defendant is only a partnership firm and was not therefore a Corporation. The learned trial Judge therefore was not justified in relying on the ratio of the decision in Prakash Roadlines (P.) Ltd. v. P.M. Gounder and Co., , in order to come to the conclusion that the suit could not be filed at Bangalore at all and that Bangalore Court could not have any jurisdiction. In such a case, as already pointed out, the case would expressly fall under Clause (a) of Section 20, C.P.C.
12. However, having regard to the findings earlier recorded that the Court at Uthagamandalam would also have jurisdiction and that the clause relating to the restriction of the forum not having been brought to the notice of the plaintiff No. 2, no infirmity can be found in the order of the learned Judge.
13. Accordingly, this revision petition is dismissed. There will be no order as to costs.